March 17, 1994 Hearing, part one (re: the necklace)

March 17, 1994 Hearing, part one (re: the necklace)

OK, transcript of Part One from the audios on the 3/17/94 hearing re: the necklace:

[NOTE:
Words/portions I can't make out in the audio are obvious by "[?... ]" -
in those spots, I've included the time it appears in the audio in case
anyone wants to give them a listen and figure out what they say for me. Also, I did not include all the "uh", "um", "uh uh uh", etc. phrases since it seems silly to add time to transcribing just to get those meaningless syllables in.]

The Court: Let's proceed with them. If you're ready, I'm ready. [mumbling] Pardon?Alright,
let the record reflect that this is a hearing out of the presence of
the jury. The subject matter of the hearing will be newly found
evidence. I guess it would be your move first, Mr. Davis.

Davis:
Your Honor, as the Court's aware from the discussions yesterday, the
necklace that -- and I don't know if you all want to --

The
Court: I think you need to just describe the whole set of circumstances
from last week when you first announced the possiblity of additional
scientific evidence. Just state for the record the full course of
events.

Price: I'd like to interrupt you, Mr. Davis -- Judge, we
talked previously before, just a few minutes ago -- Judge we would like
if we could to have this [? 01:06] conversation of the court in
chambers if we could.

Davis: We don't have any objection, Judge. Whatever the court wants to do.

Price:
That doesn't mean to say, your Honor, we can't come back out this and
discuss this in open court outside the presence of the jury, but for
right now I think it might be appropriate if we were able to talk to
the Court in chambers.

The Court: Alright, let's step back here for a few minutes. [break]

The Court: Let's proceed. Alright Mr. Davis, go ahead and state the situation or the facts.

Davis:
Judge, as of last Thursday when some of the officers and Mr. Fogleman
were reviewing and looking back through some of the evidence this
necklace that had been taken from the defendent Echols at the time of
arrest there was noted to be some red spots on it which were
questionable. That necklace was then sent down to our state crime
laboratory which did some tests which indicated that in fact that those
items on that necklace were blood and because of the small quantities
it was immediately shipped off to the DNA laboratory in North Carolina.
I think we learned probably around 1:15 or 1:30 that afternoon that
they had discovered blood on it at the Arkansas State Crime Lab and I
think at a bench conference up here that information was related to
Defense council. Monday after -- let's see --

The Court: That was Friday.

Davis: OK, that was Friday -- trying to -- let's see -- is today Thursday?

Price: Today's Thursday.

Davis:
Tuesday afternoon we learned that around 4:30 that afternoon when we
were preparing for closing arguments we received a call from Genetic
Design which indicated that they had been able to isolate two seperate
DNA sources on that particular necklace. One DNA source being
consistent with the DQ-Alpha type, which is a system for typing DNA,
consistent with Damien Echols. The other DQ-Alpha type source that was
found on that particular necklace was consistent with the victim Steven
Branch and also with the defendent Jason Baldwin. They then indicated
that they were going to attempt to run what is called an amplification
process on the sources in order to amplify and hopefully do a more
specific test and that's what we waited for yesterday and around, I
think all of the attornies were advised about simultaneously, that
around 3:30 or 4 yesterday afternoon we found out that the
amplification process had not been successful so we were left with
evidence which the state is requesting that the Court allow us to
introduce as being newly discovered evidence that would be to the
effect that there was blood found on this necklace that is consistent
with the DQ-Alpha type of the victim Steven Branch and that that
DQ-Alpha type occurs in approximately 11% of the Caucasian population.
And that's basically what the State is requesting that the Court allow
us to introduce. We realize that because of finding this evidence at
this point in time that the Defense, of necessity, needs to be able to
contact some people who are familiar with DNA, possibly bring in an
expert, whatever is necessary in order to give them adequate
opportunity to look into this issue, to examine the results and to be
prepared to deal with it. The State does not object, we would prefer to
get this matter over with, but as important as crucial as evidence of
this nature is we feel we'd be remiss if we did not make all efforts to
try to bring this before the jury so they can make a determination on
all the evidence.

The Court: Alright, Mr. Price, do you want to respond?

Price:
Yes, your Honor. It's our position for several reasons, first of all
it's our position that the Court should exclude and not allow this
evidence based on Rule 403 - exclusion of although evidence may be
relevant, it should be excluded on the grounds of prejudice, confusion
or waste of time. Another key point here since based on the DQ-Alpha
types it's my understanding, and Mr. Davis and Mr. Fogleman although
they have not received a written report they have relayed the
information that they received from the lab to us. It's our
understanding that the DQ-Alpha type on both Stevie Branch and Jason
Baldwin is a 1.2,4 which is current in approximately I believe -- is it
8% or 11%?

Davis: 11%

Price: 11% of the population. There
is also besides there's actually two spots of blood on this particular
pendant. There was one of this particular type and there's another one
that had my client's blood on there. We may consider calling if the
Court does allow this then that would necessitate us in calling
additional witnesses to reopen our part of the case in defense on this
particular issue. I think it's our position that if it's Jason
Baldwin's, if it's consistent DNA with Jason Baldwin and also Branch
that it may be not relevant at all. Judge, part of our defense in this
matter would be that sometime during the time period approximately a
month or two before the arrest that besides my client having access to
this pendant that also Jason Baldwin had access to this pendant. If
that is indeed Jason Baldwin's blood on this pendant and not Stevie
Branch's then this evidence is of no value at all and not relevant, it
should be excluded and not considered by the jury at all. I think
therefore if it is admitted into court it could tend to confuse the
issues, be unfair prejudice and mislead the jury in those issues. It's
our position that, first of all, we're requesting that this not be
allowed. The statements that Mr. Davis made in connection with how the
evidence was found is correct and we're not disputing the fact of a
when it was actually sent off, I think it was initially sent to the
crime lab and then onto the DNA lab, but it's our position that this is
something that they have had in their possession since the arrest of my
client. It's something that is not on the exhibit list that were
provided to us. It's something, it's not like the -- there was some
reference to, I don't know if it was actually introduced at this trial,
there was a stick that was discovered approximately a week before voir
dire and I think that that stick if the State attempted to use it that
might have been considered newly discovered evidence because the State
just got a hold of that that was subsequently tested and there was no
forensic value on that. But this is something that the State has had in
its possession all this time, and that's why we object to it being
introduced at this particular late date and we think it also would
violate the due process rights of my client.

The Court: How would it violate due process? I thought that's what we were here for.

Price:
Well, yes sir, we are here for due process, your Honor, but our entire
defense has been based upon the State having the burden of proof, my
client having the presumption of innocence, and we have built our
defense around the evidence the State was attempting to put forth. And
if the State comes in at the last minute at this point with some newly
discovered evidence that certainly would have to shift the way that we
have to deal with this particular evidence.

The Court: Assuming
the Court allowed the evidence, there's two basic remedies, either a
mistrial or a continuance. Which or what remedy are you looking for?
Assuming I allow it.

Price: Specifically, we would need to
discuss even further with our client before making that decision. If
the Court does grant a continuance, obviously we, as soon as we, let me
back this up. On I guess it was actually Tuesday was the first time,
actually after court adjourned was the first time that the results came
back as far as the DQ-Alpha results on this item and at that time or
actually yesterday morning Mr. Davidson and I attempted to contact at
least four or five different DNA experts and we've been very diligent
about trying to find a possible expert. Obviously at the time of a
continuance we would need to get not only the report but the raw data
and all the materials that Genetic Design has to send those both a copy
to us plus a copy to an expert and we --

The Court: You indicated you had a lady in Cincinnatti somewhere --

Price:
We've talked to someone in Maryland, we also had talked to two other
individuals. Several of the labs that we had talked to will not testify
as experts unless they're able to test the same substance. And of
course in this case because if Mr. Davis' statements are correct that
when they attempted to do the additional DS180 test that that
apparently destroyed, it consumed the remaining sample and so --

The Court: You are aware that that's not uncommon in DNA testing.

Price:
I am aware of that, yes sir, that is correct. But the fact that that
may not be uncommon still it presents my client an obvious disadvantage
in that we will not be able to get an expert to test the same substance
in order to come in here and challenge the opinion of the State's
expert. Obviously we would sort of want to pursue talking to an expert
of our own and that expert may be willing and may be able to come in
and look at the data that's performed on the other test and come in
here and testify. And that's certainly what we're pursuing in Waiting
on phone calls right now.

The Court: I mentioned to you in the
back room the Dumond case from Forrest City where the issue was
essentially the same that the sample that had been utilized to do the
DNA matching had also been either lost or destroyed or consumed.

Price: Yes, sir.

The Court: Seems like there was a --

Price: The Prater case I think is the one, the Arkansas case -- there have been one or two other --

The Court: Yeah, the Prater case, wasn't there the same issue in Prader, that it had been consumed?

Price: We're checking on that right now.

Davis:
Judge, on that one issue as far as consuming the sample, had it been
tested earlier let's say immediately after arrest I don't think the
State would have been under any compulsion to provide the Defense with
that particular item, to insure that all of it was not consumed at that
point. I think that once those items were taken into evidence as long
as there's nothing intentionally done to try to destroy evidence for
the purpose of defeating a defendent's right to properly examine them.
As long as it's a normal scientific test and it's consumed in that
process, I think it's perfectly appropriate and it's, like the Court
says, it's just he results that are available to be reviewed by the
defense.

The Court: How much time would you need? Assuming I allow it?

Price:
I talked with three individuals yesterday and this morning. We're
waiting on a phone call right now, Judge. So we don't know at this
point.

The Court: Alright, Mr. Ford, do you want to --

Ford:
Your Honor, first off, we would note on the record Tuesday afternoon
when we recessed and the jury was sent home that it was agreed and
indicated by the State and by the Court that any of this new evidence
would be considered only as to the defendant Damien Echols. It would
not be considered as to the defendant Jason Baldwin.

The Court:
I think you're absolutely correct, and I think our initial supposition
was that the DNA grouping was Mr. Echols and two of the victims and
that Mr. Baldwin's wasn't even involved at the time. At least that was
my understanding --

Davis: Your Honor, at that time we didn't know a single result, your Honor.

The Court: OK.

[NOTE:
(13:15 or so) The "Fogleman?:" statements below are due to me being
god-awful with voices plus people talking over each other. Doesn't
sound like Davis, but it's coming from the Prosecution (I'm almost
definite) so I'm guessing Fogleman? Will try to iron this out and edit
once I do...]

Fogleman?: Other than blood.

Davis: All we
knew was that there had been testing at the crime lab by Kermit Channel
and that Kermit Channel had identified it as blood under a microscope
by looking at it. But he had not done any testing on the blood.

The Court: I think he, didn't he indicate he didn't attempt to do any testing other than to identify it?

Fogleman?: Because it's [?...13:37].

Ford:
Your Honor, but that was still the decision of the Court. Before we
knew any results, the decision was this would be considered only as to
the defendent Damien Echols because this was a necklace he wore the
night of his arrest. It was taken from his person, therefore any, any
reference to Jason Baldwin in this scenario we object to because that's
been the ruling of the court. Secondly, your Honor, it has no value.
There's no value in any evidence to Jason Baldwin, cause the necklace
was taken off the defendent Echols. There's no probative value and
there's no evidence that could be inferred in any way as to guilt for
Jason Baldwin. To inject his name into this issue would be
inappropriate based upon first the Court's ruling and secondly the
relevance or probative value that evidence would contain. Thirdly your
Honor, we feel there was the continuance that resulted yesterday was an
ex parte order that we were not contacted, Rob and I were not
contacted. I understand from talking to Mr. Price and Mr. Davidson that
they were not contacted and they were in their office the entire
afternoon. Robin and I were on our way to Memphis but we had a car
phone but we did not receive a phone call. Our office personel has not
been able to give us a clear answer as to whether we were called or
not. But clearly Mr. Price was not contacted even though he indicated
he was in his office the entire time. That his first learning of it was
from the media wondering why a continuance had been granted. Your
Honor, we feel that was an ex parte continuance, that it was
inappropriate, that it was contact with the prosecution with the Court
without notification to us. That at that time the entire case had
rested. The Prosecution put on it's case and rested. Both defenses put
on their defenses and rested. Rebuttal had rested. The jury had all of
the issues, all of the facts were prepared to decide the case, but a
continuance was granted. No discussion was had as to whether the
continuance was warranted or whether we should come in here today and
do exactly what we're doing here now yesterday morning and had the jury
back there and avoid -- the jury -- And the reason that's
inappropriate, your Honor, is because the jury was not contacted but
they were told to put it on TV and tell the jurors don't come in. On
TV! On the radio. They're not supposed to even be watching the TV or
listening to the radio.

The Court: Hold on, wait a minute.
They're not supposed to be watching any news account of the trial. A
public service announcement that the jury doesn't have to report is
quite a bit different than a news account of the trial.

Ford:
Your Honor, that is an issue that should have been discussed with all
counsel and the Court to determine the most expedient and proper way to
have that information diseminated to the jury, that was not done. Now
we're in the situation where some of the jurors called in and said, "We
hear from the TV we're not supposed to come in. What do we do? Is that
true?" What were they told and by whom? Then other jurors came in, what
were they told?

The Court: Two jurors reported.

Ford: Therefore they had twelve who heard, that means twelve people or having contact with outside sources --

The Court: You want a mistrial?

Ford: May I make my argument, your Honor?

The Court: I'm just asking you what kind of remedy you want.

Ford:
Until the jury is polled and that information is determined I cannot
make my answer on that, your Honor. But I feel that the jury should be
polled and they should be asked what they were told and by whom to
learn what information they had because this next point, your Honor, is
that somewhere this evidence, what we're arguing about, was told to the
press because it was accurately reported on channel 8 Jonesboro
television why the delay. Someone told them that evidence. And now the
jury, in that same announcement, "Jurors, don't come in. We're waiting
on DNA testing from a necklace worn by Damien Echols at the time of his
arrest." That's improper. And whether that information has been heard
by the jury we should know by polling. Next, your Honor, [?... 18:08]
evidentiary issue is not proper rebuttal.

The Court: It's not
gonna be rebuttal, it will be the State allowed to reopen its case if I
proceed in that fashion, so it won't be rebuttal.

Ford: Next
thing, your Honor, we would argue that it is improper for them to
reopen this case because they had this evidence the entire time. This
is not surprise. This is not newly discovered evidence. They've had it
in their possession the entire time. They just didn't do anything with
it. That's not surprise; that's not newly discovered.

Price: We request a ten minute recess at this time.

The Court: Alright, go ahead and get your phone calls. You got any other points you want to raise? You can go ahead.

Ford: Yes, your Honor --

Price: Judge, we would object to anything going on right now.

Ford: Your Honor, it's not proper for Mr. Price to just announce to the Court he wants a ten minute recess.

The Court: Well, I want to know what his report is from his phone call too, so we'll take a recess.

Price: Thank you, your Honor.

[recess and return... mumbling followed by... (starts about 19:13)]

Davis:
Judge, we would like to talk about some of the logistics at this point
of not reading the instructions. Let John argue for an hour and then
everyone break and go home for lunch. As opposed to maybe perhaps
reading the instructions, taking an early lunch, coming back and get an
early start on the arguments and all of us argue contemporaneously.

The
Court: What I was planning on doing was reading the instructions and
then you can either argue or I can tell them to come back afterwards. I
mean let them go to lunch and then come back and argue.

Fogleman?: What I'd like to do is take an early lunch and come back and start around 12:30.

The Court: Oh, you're saying take a lunch break now?

Fogleman?: No, you can read the instructions then take a lunch break --

The Court: That's what I just said.

Davis: Yeah, as opposed to us all arguing. One arguing and then a break and then two more -- [more mumbling - [?... around 20:10 here]]

The
Court: Well do I -- Do you gentlemen want me to announce what, for the
record, what we discussed? I mean there've been motions.

Price: Is the door shut Judge?

Davis:
It's the State's position, given as I understood the Court's ruling if
the State proceeded with the evidence regarding the necklace, then the
court was going to grant a mistrial as to Jason Baldwin and the State
would be proceeding as against only defendant Echols. And it's the
State's position that based on that understanding the State will not be
submitting any additional evidence and will be prepared to argue the
case upon instruction to the jury.

The Court: OK, well I
indicated to all of you that that would be my inclination, to rule in
that fashion, if you persisted in your offer of introduction of the DNA
for a number of reasons. One is Echols would have been entitled to then
confront Baldwin and they would be cross-implicating, at least at cross
purposes. And based upon your arguments I would have granted, your
repetitive arguments for severance, I would have granted it and granted
a mistrial. But in view of your withdrawal of the tender of that
evidence, we're able to proceed to jury instructions and argument at
this time. Is that your understanding, gentlemen?

Price: Yes, sir, that's my understanding.

Ford: Once last time, your Honor, we do renew our motion for severance.

The Court: Based upon the other circumstances that will again be denied because it's not necessary at this point --[end of part 1]

"I
like flaws and feel more comfortable around people who have them. I
myself am made entirely of flaws, stitched together with good
intentions. " -- Augusten Burroughs